Friday, June 5, 2015

Hawaii's Obsession with Criminalizing Being Outside

Jalisa Jose was on vacation celebrating her twenty-first birthday. At around two in the morning, she and her girlfriends sat down to rest along the famous sands of Waikiki Beach. After having a seat, the police came out of nowhere and cited her for breaking the law. Jose and her friends were ordered to appear in the Honolulu District Court long after their vacations would be over. These ladies aren’t alone.
Hawaii News Now reported last month that one in five of the citations issued for the new anti-homeless law are tourists. The police issue the citations to anyone they see in the famous park after midnight and late-night carousing tourists are getting swept up in the dragnet with the homeless.
The irony is just spectacular.
The law was designed to help tourists like Jose enjoy their vacation and spend money. When it was passed in 2014, then-Councilman Stanley Chang announced that “the reason we have gone to such extraordinary lengths is because the homeless issue has impacted residents, visitors and the workers of Waikiki in a way that existentially threatens the economy of our community.” Nice one. Tell that to tourists like Jose who get cited on vacation and vow never to return.
This new crackdown on having a seat is nothing new. It’s another chapter in Hawaii’s quixotic quest to criminalize being outside.
          One summer’s day, the police cited Camelio Anduha for “loafing or habitually loafing” on Liliha Street in Honolulu. Anduha went to court and argued that a law criminalizing loafing, loitering, or idling on the public streets and sidewalks was unconstitutional.
The trial court agreed, but the prosecution appealed. The Hawaii Supreme Court ruled for Anduha and in doing so proved to be prescient about Jose’s case:
“Visitors, lured by the fame of our climate and of our natural scenery and the hospitality of our people, come here for recreation and pleasure. Many of them, having no other occupation, habitually but harmlessly idle or loiter upon our streets and highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, pause to enjoy the changing colors of the ocean and to talk with friends. . . . Also, there are persons who, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public highways. When weariness overtakes them they stop for rest. Attracted by the beauties of the landscape they loiter and idle for as long as they chose. . . . Is the legislature empowered to declare them lawbreakers?”
          The Court struck down the anti-loafing law. That was in 1930—eighty-five years Jose and her friends got their citations in Waikiki because they were sitting down on the sand in the middle of the night.
But bad ideas die hard in Honolulu. Decades after Anduha’s victory, another challenge arose.
It was 1970. James Lavin and Craig Grahovac were charged with a law similar to the territorial anti-loafing law. Both were accused of being a “person who wanders about the streets at late or unusual hours of the night, without any visible or lawful business.”
At their trial, the police testified that they were spotted at 1:00 a.m. walking through a part of Ewa Beach on Oahu at a place that where “youths congregate and sniff paint.” Lavin was incoherent; Grahovac was disheveled. They were found guilty. Lavin was sentenced to jail for nine months. Grahovac got six. They both appealed to the Hawaii Supreme Court.
Again the Court struck down the law. Simply put, criminalizing the act of “wandering” at “late or unusual hours of the night” was too vague to be constitutionally sound. The Court explained that such the law “subjects a pedestrian to the unbridled discretion of an officer whose standard for law enforcement is equally nebulous.”
Forty-five years after Lavin and Grahovac exercised their seemingly constitutional right to wander around paint-sniffing spots late at night, the Honolulu City Council has criminalizing the act of sitting or lying on a sidewalk throughout the city.
This year the Council passed a bill that extended the ban beyond Waikiki and criminalize sitting and lying on sidewalks all over Oahu. Mayor Kirk Caldwell, however, vetoed the measure because he feared that it couldn’t withstand a constitutional challenge. But on Wednesday, the Council overrode the veto and extended the ban. Now the stage is set for another constitutional challenge. If history is any guide, Caldwell could be on the right side of history.

But that’s no consolation for tourists like Jose. She missed her court date when she flew home. The citation and possible bench warrant has left a bad taste in her mouth. It will only be a matter of time before the law gets challenged. Perhaps Jose is the next Anduha or Grahovac.

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